Burleigh Marr Distributions Pty Ltd T/A Bidfood Gold Coast v Mr Kim Carroll

[2020] FWC 6762

[2020] FWC 6762

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Burleigh Marr Distributions Pty Ltd T/A Bidfood Gold Coast
v
Mr Kim Carroll
(C2020/8079)

Road transport industry
COMMISSIONER HUNT	BRISBANE, 16 DECEMBER 2020

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – refusal by employee to work some overtime hours – recommendation made in 2016 – time-sensitive food delivery – consideration if additional hours are reasonable.

[1] Burleigh Marr Distributions Pty Ltd T/A Bidfood Gold Coast (Bidfood) has applied to the Fair Work Commission (the Commission) pursuant to s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute arising out of the refusal by one of its employees, Mr Kim Carroll to work particular hours of overtime which Bidfood submits are reasonable additional hours of work.

[2] Bidfood and Mr Carroll are covered by the Bidfood Brisbane & Regional Sites – Enterprise Agreement 2019 1 (the Agreement). Mr Carroll is a full-time delivery driver working 38 ordinary hours per week pursuant to the Agreement.

[3] The Agreement contains an overtime clause detailing penalty rates when overtime is performed on certain days of the week. The dispute between the parties is not about a matter arising under the Agreement, but rather, in relation to the National Employment Standards within the Act.

[4] Section 62 of the Act deals with maximum weekly hours worked by employees covered by the Act. It is reproduced below:

“Maximum weekly hours of work

(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:

(a) for a full-time employee--38 hours; or

(b) for an employee who is not a full-time employee--the lesser of:

(i) 38 hours; and

(ii) the employee's ordinary hours of work in a week.

Employee may refuse to work unreasonable additional hours

(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.

Determining whether additional hours are reasonable

(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:

(a) any risk to employee health and safety from working the additional hours;

(b) the employee's personal circumstances, including family responsibilities;

(c) the needs of the workplace or enterprise in which the employee is employed;

(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;

(e) any notice given by the employer of any request or requirement to work the additional hours;

(f) any notice given by the employee of his or her intention to refuse to work the additional hours;

(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;

(h) the nature of the employee's role, and the employee's level of responsibility;

(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;

(j) any other relevant matter.

Authorised leave or absence treated as hours worked

(4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:

(a) by the employee's employer; or

(b) by or under a term or condition of the employee's employment; or

(c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.”

[5] The dispute between the parties is whether the additional hours of work beyond 38 hours that Bidfood wishes for Mr Carroll to perform on a daily, weekly or regular basis are reasonable.

[6] Neither party disputes that this matter is capable of being heard and determined by the Commission in accordance with the dispute resolution procedure provided by Clause 7.3 of the Agreement. I am satisfied that the Commission has the power to determine the dispute.

Hearing

[7] On 20 November 2020, I convened a telephone conference between the parties. The matter was not resolved, and directions were issued that day requiring the parties to file material including witness statements and submissions. Bidfood complied with the directions in preparation for a hearing on 15 December 2020.

[8] Mr Carroll was directed to file and serve any material he wished to rely upon by 10 December 2020. Mr Carroll is represented by the United Workers’ Union (the UWU). On 14 December 2020, Mr Martin de Rooy, Industrial Officer informed my chambers that Mr Carroll did not intend to rely on any evidence or written submissions before the Commission, nor did he wish to cross-examine any of Bidfood’s witnesses.

[9] At the hearing before me on 15 December 2020, Bidfood was represented by Mr David D’Arcy, Industrial Relations Advocate. Leave was granted pursuant to s.596(2)(a) of the Act for Bidfood to be represented by Mr D’Arcy, a paid agent. Mr Carroll was represented by Mr de Rooy and Mr Dan McCallum, Organiser.

[10] Statutory declarations of the following witnesses were admitted into evidence without the requirement for the witnesses to attend the hearing as Mr Carroll did not require any of them for cross-examination:

•  Mr Jason Tatnell, General Manager;

•  Mr Adam Whitmore, Operations Manager;

•  Mr David Lloyd, Branch Manager; and

•  Mr Jeffrey Clarke, Delivery Driver.

Overtime requested to be worked

[11] The overtime requested by Bidfood for Mr Carroll to work is below:

(a) The completion of the delivery of all product on the truck Mr Carroll is driving prior to Mr Carroll returning to the depot.  Bidfood Gold Coast will attempt to load the truck that Mr Carroll is driving to minimize any overtime, subject to paragraphs b, c, d and e.

(b) Mr Carroll is available for overtime on a Thursday and Friday of up to about one (1) hour on each day or one and half (1.5) hours on a Friday, if required. 

(c) That Mr Carroll is available, in lieu of paragraph b (at the company’s discretion), for overtime on the day following the public holiday, if required.

(d) Continue to be available for his eight (8) rostered Saturday overtime shifts per annum of five (5) hours each.

(e) The parties acknowledge that Bidfood Gold Coast will reasonably accommodate Mr Carroll’s personal and family responsibilities in allocating overtime.

[12] Mr Carroll has worked with Bidfood on the Gold Coast since 5 July 2000.

Evidence of Mr Jason Tatnell

[13] Mr Tatnell is the General Manager. Bidfood is a wholesaler of food (including fresh, packaged, chilled and frozen food, seafood, meat), alcohol and hospitality supplies to the foodservice industry. Bidfood Gold Coast supplies hotels, restaurants, clubs, pubs, cafes, hospitals, schools, correctional facilities, aged care facilities and retirement villages and other businesses that prepare and sell food across the Gold Coast region and Northern New South Wales. Bidfood Gold Coast’s largest customers include The Star Casino, The Sheraton Mirage, the Accor Group (including Novotel and Sofitel), Marriot Courtyard, QT Hotel, Royal Pines Hotel and Golf Club, Peppers Kingscliff, Salt Kingscliff, Southport Sharks Football Club, most of the Gold Coast surf clubs, John Flynn Hospital, University hospitality, private Gold Coast hospitality, Bond University, and the Gold Coast Airport.

[14] Bidfood Gold Coast’s largest competitors include companies such as PFD Foods, Moco Food Services, Quality Foods & Beverages, Superior Foods, Global Food & Wine. There are also over 50 independent food wholesalers in general food distribution, seafood, meat and hospitality supplies who service the Gold Coast region and northern New South Wales.

[15] Bidfood delivers to customers each day Monday to Saturday. The order cut-off time for customers to receive next day delivery is 9.30pm the night prior. All of Bidfood’s largest competitors have cut-off times for customers to receive next day delivery of between 9.30pm and 11.00pm the evening prior. Given the competitive nature of the industry it is paramount that Bidfood ensures that customers who order prior to the cut-off time (and sometimes after) receive next day delivery to retain customers. Working overtime is a consequence of this industry standard.

[16] Bidfood employs 67 employees, of which 61 are full-time employees. The industry is seasonal and subject to Gold Coast visitor numbers. It is predictably busier during school holidays, Easter, Christmas and during weeks with public holidays. Having a predominantly full-time workforce in a season industry necessitates overtime during peak times.

[17] The industry, being highly competitive, relies on the delivery promises of next day delivery prior to a defined cut-off point and delivery windows to the customer to keep and retain business. Mr Tatnell explained that a restaurant may be required to remove menu items from sale if the product is not delivered or delivered on time. Another scenario is that a restaurant may need to keep and pay staff longer to accept late delivery of product.

[18] Mr Tatnell stated that the overtime work that Mr Carroll is refusing to perform is not able to be reallocated until the next day. Much of the product requires refrigeration and it is not practical for the product to remain in the back of a truck overnight. One of the results of Mr Carroll’s refusal to work overtime during the week is that another driver will be required to work the overtime that he has refused.

[19] Bidfood’s delivery drivers are an integral link with its customers. Bidfood relies on the delivery drivers for their customer service skills and the rapport that they have with their customers. Mr Tatnell described the delivery drivers as the “face” of Bidfood.

[20] As a result of COVID-19 restrictions in Australia in the hospitality industry, on 6 May 2020, Mr Tatnell made the decision to make eight positions redundant. The business had suffered a reduction of approximately 75% in sales, and he considered that the hospitality marketplace would be inexorably altered once the restrictions were lifted. Mr Tatnell held fears that a significant number of hospitality businesses would probably not re-open or restructure or open slowly. This view was based on Bidfood’s debtor lists, which by that time had grown by approximately 30%.

[21] Mr Tatnell consulted with the UWU. Instead of eight positions being made redundant, six were made redundant. Casual employees were stood down or terminated.

[22] When the business significantly recovered in around August and September 2020, Mr Tatnell’s evidence is that with a reduced number of delivery drivers, it became increasingly difficult to reallocate the overtime work that Mr Carroll was refusing to perform. This is so even with two new delivery drivers hired and an additional four storepersons.

[23] It was reported to Mr Tatnell that on 10 September 2020, Mr Carroll was raising his voiceto Mr Brendan Singh, Customer Service Representative in the outer office. Mr Tatnell was informed that Mr Carroll was upset because he had worked approximately 30 minutes of overtime that day.

[24] On 18 November 2020, Mr Tatnell and Mr D’Arcy met with Mr McCallum where the wording of a reasonable overtime request was to be put to Mr Carroll. A copy of the proposed wording was put to Mr Carroll.

[25] Following the conference before me on 20 November 2020, Mr Carroll rejected the proposed overtime request.

Evidence of Mr Adam Whitmore

[26] Mr Whitmore is the Operations Manager. He commenced employment with Bidfood in 2002 as a storeperson before becoming a warehouse supervisor. Between 2014 and 2016 he was the site delegate for the National Union of Workers (now the UWU). He commenced as Operations Manager in May 2017.

[27] Bidfood made six delivery drivers redundant in May 2020, did not replace a driver who had resigned, and redeployed one other driver to the warehouse. Mr Whitmore’s evidence is that when business improved in August 2020 to its usual level, despite hiring two new drivers, it has become increasingly difficult to allocate work which is refused by Mr Carroll.

[28] Mr Carroll’s hours of ordinary work is from 7:00am until 3:06pm, Monday to Friday. He drives a truck that requires a medium ridged drivers licence to operate. He is given deliveries in and around the suburb of Nerang. He is usually requested to perform either one or two delivery routes each workday.

[29] In the event Mr Carroll returns to the depot prior to his rostered ordinary finishing time of around 3:05pm, he works in the warehouse. Mr Whitmore stated that this work is largely unproductive and Mr Carroll is surplus to staffing requirements.

[30] On 15 January 2016, Commissioner Roe issued a recommendation where a dispute had been made by the National Union of Workers, objecting to particular overtime for some workers, including Mr Carroll. The recommendation, adopted by the parties was that Mr Carroll would work eight rostered Saturday overtime shifts of approximately five hours in length per annum, together with a small amount of overtime during the week. In fact, the recommendation reads:

“This dispute was the subject of conciliation at the Fair Work Commission on 14 December 2015 and 13 January 2016. The parties agreed to the following resolution to the dispute:

1. Mr Carroll will not be required to work overtime during the week.

2. Mr Carroll and the other three long term drivers will be rostered over the course of each year to work 8 Saturdays. The average hours rostered on a Saturday will be no more than 5 hours. Rostered includes occasions work is advised but subsequently cancelled. In the event that Mr Carroll is on extended leave other than annual leave this will not result in additional days being allocated outside the roster.

3. The company will allow employees to swap rostered Saturday overtime subject to fatigue management. A notice will be placed advising employees that they can swap Saturday overtime subject to fatigue management and employees who wish to work additional overtime can indicate their availability so that those who might wish to swap can contact them.”

[31] On 28 September 2020, Mr Whitmore reviewed the payroll system and analysed the overtime hours Mr Carroll had worked since 2012. He determined the following:

(a) Between 2012 and 2015, he had worked between a low of 193.62 overtime hours (2013) and a high of 272.37 overtime hours (2012) per annum; and

(b) Between 2016 and 2019, he had worked between a low of 53.68 overtime hours (2018) and a high of 84.77 overtime hours (2017) per annum.

[32] It is noted that the hours above include the rostered Saturday overtime work where approximately five hours is worked every eight weeks.

[33] In 2020, Mr Carroll has worked only 32.76 hours of overtime. Mr Whitmore informed Mr de Rooy of these calculations in an email dated 28 September 2020.

[34] On 10 September 2020, Mr Carroll worked approximately 30 minutes of overtime after completing his ordinary hours of work. Mr Singh reported to Mr Whitmore that Mr Carroll complained, saying he was not required to work overtime Monday to Friday.

[35] On 11 September 2020, Mr Carroll commenced work at 7.00am and he was scheduled to make deliveries to 31 customers in and around Nerang. At approximately 2.30pm, Mr Chris Gregory, Stock Controller telephoned Mr Whitmore to advise him that Mr Carroll had telephoned to advise that he was returning to the depot with stock on his truck because he was not required to perform overtime during Monday to Friday.

[36] Mr Whitmore asked Mr Gregory to speak with Mr Jeff Clarke, Delivery Driver to see if he could finish Mr Carroll’s route. The last drop that Mr Carroll made on 11 September 2020 was to the Kooco Espresso Bar and Café located in Nerang. At approximately 3.00pm, Mr Carroll returned the truck with goods still on board. At 3.06pm, Mr Clarke left the depot to deliver to the five remaining customers in or around Nerang. Mr Clarke returned to Bidfood Gold Coast’s depot at 5.07pm, having completed the round trip.

[37] On Thursday, 1 October 2020, prior to the public holiday on Monday, 5 October 2020, Mr Carroll commenced work at 7.00am and he was scheduled to make deliveries to nine customers in and around Nerang. Mr Carroll departed the depot at 10.24am with his second run for the day comprising of 22 drops, with a value of around $11,000 of product on board. Mr Carroll telephoned Mr Gregory to advise he would be returning from Nerang with four drops as he refused to work overtime and refused to complete the run. Mr Gregory made inquiries of Mr Whitmore who again requested Mr Gregory inquire of Mr Clarke if he could complete the run. Mr Clarke had returned to the depot and agreed to perform the work. He did not return until 5:15pm after travelling to the Nerang area, completing the four drops and returning to the depot.

[38] On Friday, 2 October 2020, Mr Carroll departed with his first run at 7.00am and he returned at 12.24pm. Mr Whitmore was concerned that if he required Mr Carroll to perform the second run for the day, it might not be completed, given Mr Carroll’s refusal to work overtime the day before. Mr Whitmore allocated the second run to an alternate driver, resulting in significant disruption to customer delivery times.

[39] Mr Whitmore’s evidence is that Mr Carroll’s refusal to work any weekday overtime is costing Bidfood in considerable extra driving time and it is damaging its reputation.

Earlier recommendation

[40] Mr Whitmore noted the recommendation made by Commissioner Roe in early 2016. Throughout September 2020 this was discussed with Mr de Rooy. On 3 September 2020, Mr Whitmore communicated to Mr de Rooy that there was significant pressure on the business due to the current trading environment, and Mr Carroll was required to perform reasonable overtime. Mr Whitmore suggested that Mr Carroll’s ordinary working week could be altered to accommodate a 10 hour day, typically on a Friday.

[41] Mr Whitmore’s evidence details the extent of the communication he had with Mr de Rooy and Mr McCallum over the issue during the months of September and October 2020. It is extensive. A Zoom meeting was held on 22 September 2020. Mr Carroll resolved not to work overtime Monday to Friday.

[42] Mr Whitmore’s evidence is that he held a discussion with Mr Carroll on 22 October 2020 where Mr Carroll informed him that he could not trust Mr Whitmore. Mr Carroll stated that in his opinion, Mr Whitmore had lied by stating that the recommendation issued in early 2016 was no longer relevant or binding. Mr Whitmore said to Mr Carroll that the business was under new management and operating in a different environment.

Hours of work – August 2020

[43] Mr Whitmore prepared a record of hours worked by Mr Carroll in August 2020. The records demonstrate the following:

(a) He worked 18 days, performing 8.25 hours of overtime on five of the 18 days;

(b) On Friday, 7 August 2020 he made drops on two delivery routes between 7:00am and 11:14am and then between 12:00pm and 4:21pm;

(c) On Thursday, 13 August 2020 he made drops on one delivery route between 2:10pm and 5:24pm;

(d) On Thursday, 20 August 2020 he made drops on one delivery route between 9:00am and 3:45pm;

(e) On Friday, 21 August 2020 he made drops on two delivery routes between 7:00am and 10:38am and then between 11:00am and 4:05pm; and

(f) On Friday, 28 August 2020 he made drops on two delivery routes between 7:00am and 10:50am and then between 11:15am and 3:53pm.

[44] On the remaining 13 days where he worked, he finished work at 3:05pm. On five days where he made drops on two delivery routes, he completed his work within his ordinary hours.

[45] Mr Whitmore’s record of hours for work performed by Mr Carroll between 1 – 25 September 2020 demonstrate the following:

(a) He worked 14 days performing 7.48 hours of overtime on two of the 14 days;

(b) On Friday, 4 September 2020 he made drops on two delivery routes between 7:00am and 11:32am and then between 12:15pm and 4:37pm; and

(c) On Monday, 7 September 2020 he made drops on two delivery routes between 7:00am and 11:21am and then between 12:00pm and 4:16pm.

[46] On the remaining 12 days where he worked, he finished work at 3:05pm. On six days where he made drops on two delivery routes, he completed his work within his ordinary hours.

[47] It is not clear that Mr Whitmore’s figures are precise. The overtime worked above on the two days does not add up to 7.48 hours, unless Mr Whitmore has not included Saturday overtime worked by Mr Carroll. Where Mr Carroll worked approximately 30 minutes of overtime on 10 September 2020, it is not demonstrative in the figures produced by Mr Whitmore. Presumably the overtime was worked in the warehouse.

[48] Mr Carroll worked only nine days in October 2020 on account of an absence on annual leave and also a compensable workers compensation injury. He typically returned to the depot between 2:00pm and 3:00pm.

Busiest days

[49] Mr Whitmore prepared a calculation demonstrating that the busiest day for the business in terms of overtime hours is Friday, followed by Thursday, Monday, Wednesday and Tuesday. This altered slightly between August and November 2020 to be Friday, followed by Thursday, Tuesday, Wednesday and Monday. Overtime performed by delivery drivers on a Saturday is limited to approximately four to five hours. Four delivery drivers perform some of their ordinary hours on a Saturday, and the balance of drivers are rostered drivers performing overtime.

[50] The total value of items delivered on Mondays to Wednesdays is approximately $250,000, rising to over $300,000 on Thursdays and over $340,000 on Fridays.

Handling fatigue management

[51] Mr Whitmore stated that on 12 September 2020, Mr Carroll was required to read and undertake that he had read and understood Bidfood’s Risk Management Statement for Fatigue Management for Drivers of Heavy Vehicles, Bidfood Driver Work Instruction, and the National Transport Commission Guidelines for Managing Heavy Vehicle Driver Fatigue.

[52] On 16 May 2019, Mr Carroll was trained in and was provided with a new copy of Bidfood’s Drivers Handbook which includes Bidfood’s fatigue management policy.

Notice of overtime

[53] Mr Whitmore stated that Bidfood’s Saturday driver’s roster is produced four weeks in advance for an eight-week period. It is posted on the despatch office. Employees are at liberty to swap these shifts with each other to accommodate their personal circumstances.

[54] Relevant to daily overtime which may be required, Mr Whitmore stated that it is impractical in some circumstances to provide notice of overtime; for example where an accident and other motoring delays (such as roadworks) affect the time Mr Carroll may be able to return to the depot.

[55] On account of how busy the business typically is on a Friday and Thursday, Mr Carroll can reasonably be expected to work overtime on these days. Mr Whitmore considers that Mr Carroll would not be regularly required to perform any significant overtime on a Monday, Tuesday or a Wednesday, except where a public holiday falls on the day prior, or in unforeseen circumstances.

[56] Prior to the effects of COVID-19, Bidfood offered an 11:00am same day cut-off ordering service, which typically meant delivery drivers might undertake two delivery routes on the one day. As a result of the COVID-19 impacts, the order cut-off is 9:30pm the night before. Approximately seven to nine trucks are loaded the night before the deliveries occur, and changes to the despatch shift have occurred to accommodate the change. Mr Whitmore’s evidence is that Mr Carroll will more than likely not need to return to the depot on most days for a second delivery route.

[57] Mr Whitmore’s evidence is that the effects of Mr Carroll’s refusal to work overtime has required the business to ask other drivers at short notice to work the balance of the delivery route refused by Mr Carroll. The work performed by the other drivers doing this is unplanned overtime.

Evidence of Mr David Lloyd

[58] Mr Lloyd is the Branch Manager of the Bidfood Yatala branch. He was the manager of the Gold Coast branch between 2014 and 2017 when it was managed by a different entity. His evidence is that on 24 May 2014, the Gold Coast operation implemented a half-day Saturday overtime roster for drivers.

[59] On 7 June 2014, Mr Carroll received a written warning for his failure to present for a rostered Saturday overtime shift. Mr Carroll then commenced to perform Saturday overtime shifts in accordance with the Saturday roster. Between 1 January 2015 and 11 December 2015 Mr Carroll worked 13 Saturdays.

[60] On 9 November 2015, Mr Lloyd received a telephone call from Mr Paul McNicol, NUW Organiser who expressed concerns of excessive overtime; in particular about the half day Saturday overtime roster for drivers. On 13 November 2015, Mr Lloyd and the then Operations Manager met with Mr Carroll and Mr Whitmore who was then the Warehouse Supervisor and NUW delegate. At the meeting Mr Carroll stated that he was refusing to work anymore Saturday overtime shifts.

[61] On 13 November 2015, Mr Carroll sent Mr Lloyd an email saying that he considered his employment was being threatened by refusing to work Saturdays, that he regularly worked overtime during the week and that he had family commitments on the weekend.

[62] On 30 November 2015, the same participants who met on 13 November 2015 reconvened. Saturday overtime shifts were discussed, together with overtime on other days of the week. Accommodations to not require Mr Carroll to work overtime on Tuesdays were granted on account of Mr Carroll’s family responsibilities, involving his child who would have been aged approximately 15-16 at the time.

[63] On 5 January 2016, Mr McNicol telephoned Mr Lloyd and informed him that Mr Carroll had agreed to work eight Saturday overtime shifts per annum, typically one in every six weeks. Generally, other drivers had agreed to work typically one in every three weeks. On 6 January 2016, Mr McNicol telephoned Mr Lloyd, apologising, stating that Mr Carroll had reneged on the arrangement. Mr Lloyd’s records of these conversations note that the matter was before the Commission, and Mr Carroll was refusing to work any overtime on Saturdays, and would await the Commission dealing with the dispute.

[64] On 15 January 2016, a conference was held before Commissioner Roe. By then a consent position had been reached and the recommendation made. Mr Lloyd considered it more important for Saturday overtime to be worked, as the business’ competitors were delivering on Saturdays. He considered that the business could rearrange its operations so as not to require Mr Carroll to work overtime during the week.

Evidence of Mr Jeffery Clarke

[65] Mr Clarke is a delivery driver employed by Bidfood. He has been employed since August 2003.

[66] His evidence is that on 11 September 2020, he commenced work at 7.00am and delivered goods to 23 customers, returning to the depot at 2.30pm. He was approached by Mr Chris Gregory, Stock Controller, who asked him whether he could make further deliveries as Mr Carroll had returned the truck he was driving with goods still on board. Mr Clarke agreed to work the overtime. He left the depot for a second time at 3.05pm and returned at 5.07pm.

[67] Mr Clarke drove the truck that Mr Carroll had been driving and made deliveries to five customers in or around Nerang. It took him approximately 30 minutes to get to the first customer delivery in Nerang and approximately 45 minutes to return to the depot. His evidence is that when he arrived at a particular client’s premises the chef was upset that he arrived late to deliver the goods. He noticed that they were packed up and ready to go home for the day. He apologised to the chef.

[68] On Thursday, 1 October 2020, prior to the October long weekend, Mr Clarke commenced work at 6.00am and delivered goods to 24 customers, returning to the depot at 2.37pm. He was approached by Mr Gregory, who asked him whether he would make further deliveries as Mr Carroll had returned the truck he was driving with goods still on board. Mr Clarke agreed to work the overtime. He left the depot for a second time at 3.10pm and returned at 5.15pm.

[69] Mr Clarke drove the truck that Mr Carroll had been driving and made deliveries to four customers in Nerang. It took him approximately 30 minutes to get to the first customer delivery in Nerang and approximately 45 minutes to return to the depot. His evidence is that when he arrived a particular client’s premises the chef at the function centre was upset that he had arrived late to deliver the goods. Mr Clarke felt that he had to apologise to the chef; he said sorry, we’re snowed under.

[70] Mr Clarke considers that the business operates as a team and is of the view that most employees participate. He stated that he found it annoying that he had to work an extra-long day because Mr Carroll would not finish his route.

[71] He stated that the industry in which he is in is seasonal and is subject to Gold Coast visitor numbers. He stated that the work is predictably busier during school holidays, Easter, Christmas and during short weeks where public holidays fall.

[72] Mr Clarke considers that as a delivery driver he is a significant point of contact for customers. Especially for small customers, he will be Bidfood’s primary customer contact. He considers that he has built a great reputation and rapport with Bidfood’s customers. He considers excellent customer service to be one of the core functions of a delivery driver.

[73] Mr Clarke stated that the foodservice industry is highly competitive and relies on the delivery promises of next day delivery prior to a defined cut-off point and meeting delivery windows to keep and retain business. Mr Clarke considers as a driver it is his responsibility to work as a part of team to ensure that the business in which he works meets its customers’ needs. He stated that the work that Mr Carroll is refusing to perform is not able to be reallocated until the next day.

Written submissions of Bidfood

[74] In addressing the relevant criteria in s.62(3) of the Act, Bidfood submitted the following.

Health and safety

[75] Bidfood submitted that there exists no risk to Mr Carroll’s health and safety from working the additional hours Bidfood requests of him. It was submitted that the overtime hours that Mr Carroll is refusing to work fall well within the allowable driving hours pursuant to the Heavy Vehicle (Fatigue Management) National Regulation legislation on driver fatigue. Bidfood has a driver fatigue policy and guidelines and has trained its drivers (including Mr Carroll) in its fatigue management policy and guidelines.

[76] The Heavy Vehicle National Law (Qld)(“HVN Act”) section 6 defines a “heavy vehicle” as a vehicle with a gross vehicle mass (“GVM”) of more than 4.5 tonnes. The GVM of a vehicle is the maximum it can weigh when fully loaded, as specified by the manufacturer. Mr Carroll holds a medium ridge driver licence. In Queensland a medium ridge licence allows for the operation of a truck over 8 tonnes GVM with a maximum of two axles.

[77] The Heavy Vehicle (Fatigue Management) National Regulation (Qld) regulation 5 provides the maximum work time for the for solo drivers, which is contained at Schedule 1, as follows:

Table 1 Standard hours—solo driver of fatigue-regulated heavy vehicle Time	Work	Rest
In any period of…	A driver must not work for more than a maximum of…	And must have the rest of that period off work with at least a minimum rest break of…
5 ½ hours	5 ¼ hours work time	15 continuous minutes rest time
8 hours	7 ½ hours work time	30 minutes rest time in blocks of 15 continuous minutes
11 hours	10 hours work time	60 minutes rest time in blocks of 15 continuous minutes
24 hours	12 hours work time	7 continuous hours stationary rest time*
7 days	72 hours work time	24 continuous hours stationary rest time
14 days	144 hours work time	2 x night rest breaks# and 2 x night rest breaks taken on consecutive day

[78] It is noted that Mr Carroll appears not to have ever been required to work in a period in excess of 11 hours, which would require simply a further break of up to 30 minutes on top of the earlier 30 minute break taken by him.

Personal circumstances including family responsibilities

[79] Bidfood submitted that to the best of its knowledge there exists no personal circumstances, including family responsibilities that would prevent Mr Carroll from working the requested overtime hours.

[80] In the conference before me, and restated during the hearing, Mr Carroll has two children aged 20 and 15. In the conference before me Mr Carroll stated that he does not have any extra-curricular activities he needs to attend with his children after work Monday to Friday, and his 15 year old child is competent to travel from school to home and be at home unattended.

Needs of the workplace

[81] The submissions on this issue largely repeated the evidence of the witnesses. As an employer primarily of full-time employees, it cannot readily source labour to supplement its workforce, nor can the work carry over to the following day. It is time-sensitive and the business operates in a very competitive environment.

Overtime payments, penalty rates or other compensation

[82] Bidfood submitted that Mr Carroll is paid $28.1471 per ordinary hour, a base rate of pay that exceeds the relevant Award rate by approximately 29%. Mr Carroll is paid time and a half for the first three hours and then double time thereafter for any overtime hours worked.

[83] Further Clause 3.10.1 (General Disability Allowance) of the relevant enterprise agreement provides that Mr Carroll is paid a general disability allowance of $36.23 per week. The relevant clause is produced below:

“3.10.1 General Disability Allowance

All Employees covered in this Agreement shall be paid a general disability allowance in accordance with clauses 3.2.1, and 3.2.2 of this Agreement. This allowance shall be treated as part of the base rate of pay for all purposes of the Agreement. This allowance shall be deemed to be paid in settlement of any claims in the following respects:

(a) handling heavy packages, including meat quarters, sides, carcasses, and etc;

(b) work in low temperatures (chillers);

(c) availability of duty for overtime;

(d) moving pallets with pallet trucks;

(e) availability of duty after a break of eight hours in the circumstances specified in Clause 4.2 (Overtime).” [my emphasis]

Any notice given by the employer

[84] Bidfood submitted that relevant to Saturday overtime, the roster is published well in advance of the requirement for Mr Carroll to work one Saturday every six weeks, or eight weeks per annum.

[85] It was submitted that it is impractical in some circumstances to provide notice of overtime, for example where an accident and other motoring delays (such as roadworks) affect what time Mr Carroll may be able to return to the depot. Having considered the total overtime hours, it can be reasonably expected that Mr Carroll would be asked to perform overtime on a Friday and on a Thursday on a regular basis.

[86] It is Mr Whitmore’s view that Bidfood would not need to regularly request that Mr Carroll work any significant overtime on a Monday, Tuesday or Wednesday, excluding where a public holiday falls on the day prior, save an unforeseen circumstance.

[87] Mr Carroll has been advised by Bidfood that if he has not completed the drops on the back of his truck that it would expect that he do so prior to returning to the depot.

Any notice given by the employee

[88] Bidfood submitted that whilst Mr Carroll expressed his dissatisfaction at working overtime on 10 September 2020, Mr de Rooy sent an email on the matter on 2 September 2020. Mr Carroll gave short notice of his refusal to work overtime on both 11 September 2020 and 1 October 2020.

[89] When Mr Carroll provided short notice on 11 September 2020 and 1 October 2020 it resulted in the business having another driver, Mr Clarke, make the deliveries, with delivery window times missed, resulting in customer dissatisfaction.

Usual patterns of work in the food service industry

[90] Bidfood’s evidence is that its largest competitors deliver to customers each day Monday to Saturday. Bidfood and its largest competitors have cut-off times for customers to receive next day delivery of between 9.30pm and 11.00pm the evening prior. It was submitted that given the competitive nature of the industry it is paramount that Bidfood ensure that customers who order prior to the cut-off time (and sometimes after) receive next day delivery to retain customers. Working overtime is a consequence of this industry standard.

Nature of the employee role and level of responsibility

[91] Bidfood stated that Mr Carroll’s role involves a level of responsibility, and he is the face of the business to the customers allocated to him. When Mr Carroll does not meet the customers’ expectations on delivery times, his actions damage Bidfood’s reputation and business.

Averaging term

[92] It was submitted that this was not a relevant consideration as averaging of hours is not in place.

Relevant case law

[93] The following authorities were submitted for consideration. In Macpherson Coal & Allied Mining Services Pty Ltd (No.2) 2 where the argument concerned the implementation of a forty-four (44) hour roster the Magistrate held that:

“Neither the shift length nor the total hours per week worked appear to breach any government health and safety guidelines. The possible detriment caused to an employee’s social life are the length of the shift in terms of its physical affects and its restriction on social activity which are compensated for in extra time off and overtime payments.”

[94] In Metal Trades Employers Association v Boilermakers Society of Australia, 3 the Commonwealth Industrial Court (Dunphy and Morgan JJ) said:

“reasonable overtime is not one way; it must be considered in relation to the worker's conditions and also in relation to the employer's business…”

[95] In the Working Hours 4Case the Commission said:

“(a) The number of additional hours

This factor was raised by the ACTU in its claim in the Working Hours Case at [10]. The respondent’s submission on this point is that the applicant is only required to work an additional six hours up to 44 hours per week. It might have added that at [211] of the Working Hours Case the Bench noted:

“The ACTU, after referring to a number of cases relating to the number of hours of overtime that may or may not be reasonable, submitted:

(1) in summary, there are circumstances in which 44 to 45 total hours per week are seen to be reasonable. There are no cases which indicate that regular overtime giving rise to working weeks in excess of 48 hours per week is reasonable. There are cases which indicate that overtime giving rise to working weeks regularly in excess of 48 hours is unreasonable; and

(2) while the circumstances vary, it can be said that the borderline between reasonableness and unreasonableness exists somewhere between an overall working week of 44 and 48 hours. In any event the limit of reasonableness is less than the descriptions of extreme hours set out in subclause 3 of its claim.”

But I am of the view that to utilise the number of additional hours as a relevant factor is in fact begging the question. The number of hours may be reasonable or unreasonable depending upon the way in which they interplay with the other factors. What might be a reasonable number of additional hours in some circumstances may not be in others. If, after this analysis, the situation is neutral then it would be appropriate to take into account the ACTU’s submission that unreasonable hours commenced at 44 and the finding in the Working Hours Case at [73] that standard hours were between 35 and 44 hours a week and that extended hours were more than 44 hours a week.”

Mr Carroll’s submissions

[96] Mr Carroll elected not to provide any evidence to the Commission other than to make a few statements during the hearing of 15 December 2020.

[97] During the hearing, and following Bidfood’s oral submissions, Mr de Rooy stated, without having provided any advance knowledge of such concession, that Mr Carroll agreed to the following, so long as he did not have to work Saturdays:

(a) The completion of the delivery of all product on the truck Mr Carroll is driving prior to Mr Carroll returning to the depot.  Bidfood Gold Coast will attempt to load the truck that Mr Carroll is driving to minimize any overtime, subject to paragraphs b, c, d and e.

(b) Mr Carroll is available for overtime on a Thursday and Friday of up to about one (1) hour on each day or one and half (1.5) hours on a Friday, if required. 

(c) That Mr Carroll is available, in lieu of paragraph b (at the company’s discretion), for overtime on the day following the public holiday, if required.

[98] It appears that Mr de Rooy only received instructions on this concession on 14 December 2020. I questioned Mr Carroll as to why he did not wish to work on Saturdays. He replied that he considers it to be a time for family; he wishes to go dirt bike riding, teach his child to drive and take his boat out with his family. He considers that he if does overtime during the week he wishes to spend time with his family on the weekend.

[99] Following Mr Carroll’s brief statement, Mr de Rooy made the following submission:

•  The UWU does not dispute the overtime request made by Bidfood is reasonable;

•  Mr Carroll has no substantial basis for refusal, save for the long-standing recommendation that has been in place; and

•  Mr Carroll will comply with any decision or recommendation of the Commission.

Consideration

[100] My consideration as to the criteria in s.62(3) in determining if the additional hours requested of Mr Carroll are reasonable has been helpfully presented by Bidfood in the evidence presented before the Commission and the submissions made.

[101] The UWU, on behalf of Mr Carroll does not quibble with the reasonableness of the request. No evidence was put before the Commission that any of the considerations that Bidfood has turned its mind to are incorrect. No submissions were made other than Mr Carroll would have preferred either the earlier recommendation to continue to be effective, or if he agreed to work overtime during the week, he not be required to work overtime on Saturdays, where he is asked to do so one week in every six weeks.

[102] I have had regard to the evidence and submissions put to the Commission. Bidfood has been put to a very considerable effort in this application, and it has provided a very substantial amount of information which affords me the greatest confidence to state that the overtime hours Bidfood wishes for Mr Carroll to perform are reasonable, and there is no basis for Mr Carroll to refuse the additional hours as they are not unreasonable.

[103] I accept all of the submissions put by Bidfood. I note that Mr Carroll does not have any declared after-work responsibilities or interests Monday to Friday. His children are not dependent upon him for the period shortly after 3:00pm, nor if he were to work overtime of say, one to three hours. Mr Carroll has not presented with any medical reason or capacity issue as to why he would be unable to work the overtime requested of him.

[104] Bidfood is in an important industry; it is providing very recently ordered fresh food to many establishments who are dependent on the delivery window provided by Bidfood’s delivery drivers. I accept the evidence that Bidfood’s delivery drivers are the face of the business, and the expectation customers have of their order being met is extraordinarily high, and reasonably so. The service offered by Bidfood could easily be replaced by a competitor, it seems, and it is too great a risk to have the last handful of customers on any weekday “punted” by Mr Carroll on account of his desire, without reasonable excuse to not work beyond 3:05pm.

[105] I consider Mr Carroll’s conduct in returning to the depot with a small number of drops remaining, knowing that one of his colleagues would likely be requested to complete the drops after having worked their own ordinary hours to be blinkered and unnecessarily so. Mr Carroll is not being asked, particularly Monday to Wednesday in a typical week to work excessive hours. He is simply being asked to complete either one large delivery route, or the second of two smaller delivery routes. I accept that every effort is made by Bidfood to have Mr Carroll return to the depot as close to his usual finishing time as possible, however with a small number of drops still on board, Mr Carroll’s insistence at returning to the depot is bewildering and unreasonable. Customers are being disappointed.

[106] The efforts of Mr Clarke to deliver what Mr Carroll refused to do is commendable. He knew what was at stake, and met his employer’s request, even driving the vehicle normally allocated to Mr Carroll as it was still loaded with the product he should have delivered whilst in the vicinity of Nerang. The inefficiency in Mr Carroll returning to the depot, and Mr Clarke driving approximately 30 minutes to the Nerang area, to make the small number of drops and then a return of approximately 45 minutes to the depot demonstrates how unreasonable Mr Carroll’s conduct was on the small number of occasions when he refused to complete the work allocated to him.

[107] Mr Carroll’s position is that he now has no issue with completing the requested overtime during the week, so long as he doesn’t have to work up to five hours, eight Saturdays per annum.

[108] Even if Mr Carroll had a longer day than usual on a Friday before the Saturday allocated to him, I do not consider it would be dangerous or cause any risk of fatigue to Mr Carroll. The expectation for Fridays is that Mr Carroll might typically be required to work approximately 1.5 hours of overtime on a Friday, finishing at approximately 4:40pm or thereabouts. This is not an onerous request, even taking into account a start time of 7:00am. Mr Carroll could be requested to work until around 6:00pm or thereabouts, and I would still be satisfied that he could, unless any kind of emergency presents, attend for work the following day and safely complete his duties of approximately five hours.

[109] Mr Carroll’s submission that weekends is for family time and being requested to work up to five hours, eight weeks per annum will interfere with his family time is not accepted. It appears to me that Mr Carroll has, sadly, had little regard for some of his colleagues whom I understand might be rostered to work Saturday overtime hours far more often than Mr Carroll. It appears to me that Mr Carroll considers his own family time to be of greater importance than that of his colleagues. It should be noted, however, that some of Mr Carroll’s colleagues might be keen to periodically work Saturday overtime to increase the earnings as the work is paid for at overtime rates.

[110] Mr Carroll is free to attend to the family activities that he described across five out of six Saturdays. It is not unreasonable to require him to work eight Saturdays per annum.

[111] I have also taken into account the General Disability Allowance which in part, has been received by Mr Carroll in his hourly rate of pay on account of making himself available to work overtime, if required. Where the occasional Saturday overtime shift is known well in advance, there is understandably occasions, Monday to Friday when a small number of drops may not be able to be completed within the ordinary hours of work, and it would be extraordinarily unfair on Bidfood to have an employee return to the depot without the delivery having been made.

[112] I have also had regard to what Mr Carroll considered to have been the deal struck in early 2016 by virtue of the recommendation made by the Commission. Mr Carroll wished for it to continue, yet in 2020, Bidfood considered his reticence to provide flexibility like its other employees to be incompatible with its efforts to meet its customers’ requirements as it trades its way back to pre-COVID-19 figures, with the potential of a smaller customer base on account of some businesses not surviving the effects of the pandemic.

[113] Many years have passed since the January 2016 recommendation was made by the Commission. One of Mr Carroll’s children is now aged 20, and the other aged 15. They were, of course, much younger nearly five years ago, and the issues presented with one of his children, requiring him to leave on Tuesdays at the strict finish time are, thankfully not currently presented.

Conclusion

[114] For all of the above reasons, I am satisfied that the request by Bidfood at [11] to Mr Carroll to work overtime hours beyond his ordinary hours of work is reasonable, and the hours that could be worked, if so requested, are reasonable. For the same reasons, I consider that Mr Carroll is not able to rely on s.62(2) of the Act to refuse to work the additional hours as they are not unreasonable.

[115] Relevant considerations may arise on any working day which might make the request to work overtime hours on that day unreasonable including, for example, a family emergency.

[116] I have considered all of the considerations at s.62(3) in determining this dispute.

[117] For the reasons given above, the question for arbitration has been answered.

COMMISSIONER

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 1   [2019] FWCA 5357.

 2 [2009] FMCA 881 at 38.

 3 (1956) 94 CLR 254 at 334.

 4   [2002] AIRC 857 at 41 – 42.